What is gender identity? 'Bathroom bill' lawsuits offer opposing views.
Modes of thought
The suits filed by North Carolina and the Department of Justice Monday reveal profoundly different understandings of both gender identity and interpretation of civil rights law.
New York — For North Carolina Gov. Pat McCrory, the concept of “gender identity” doesn’t make legal sense. It’s not only unclear and ill-defined, he said, it also upends the long-held definitions many Americans have had about gender and traditions of modesty and privacy.
And for most of the supporters of North Carolina’s controversial “bathroom bill,” gender identity, if it has any meaning at all, is a matter of biology and clearly marked at birth.
Less than a decade ago, such a position about gender identity would hardly have generated the maelstrom now centered over North Carolina. But as the nation continues down a path of profound social upheaval over matters of sexuality and personal identity, opponents of the law see older notions of immutable, biological gender as the root of discrimination.
Indeed, over the past few years, American attitudes toward the country’s estimated 700,000 transgender residents have undergone a significant shift. From pop culture to the country’s business culture to the significant changes in many state federal policies, transgender people have emerged from the shadows of American life to become more visible. And like gays and lesbians decades ago, such visibility began to affect the country’s changing social mores.
“In the bigger picture, I think the status of transgender individuals is sort of what the status of lesbian and gay individuals was 30-35 years ago,” says Steve Sanders, professor at the Indiana University Maurer School of Law in Bloomington and an expert on issues pertaining to sexuality and the law. “Among many people, the phenomenon of gender identity is still frequently misunderstood – just like the phenomenon of sexual orientation was misunderstood.”
But the nation’s cultural rifts were laid bare Monday when Governor McCrory, a conservative Republican up for reelection this year, doubled down to defend his state’s controversial law, known as HB 2, which requires that all individuals use only those facilities that correspond to their gender at birth.
His administration filed a preemptive lawsuit against the United States Justice Department early Monday, arguing in no uncertain terms that “transgender status” is not a protected category under the nation’s civil rights laws. The Department’s definition of gender identity, the lawsuit said, was a “baseless and blatant overreach” that stemmed from a “radical reinterpretation” of the 1964 Civil Rights Act, which neither mentions nor defines the status of transgender people."This is now a national issue that applies to every state and it needs to be resolved at the federal level,” McCrory said in a statement.
Hours later, Attorney General Loretta Lynch filed a countersuit, saying North Carolina “created state-sponsored discrimination against transgender individuals, who simply seek to engage in the most private of functions in a place of safety and security – a right taken for granted by most of us.”
Yet with such profoundly different understandings of both gender identity and the interpretation of civil rights law, in some ways, the suit and countersuit spoke past each other on Monday.
“What we must not do – what we must never do – is turn on our neighbors, our family members, our fellow Americans, for something they cannot control, and deny what makes them human,” Attorney General Lynch said at a press conference announcing the Justice Department’s action. “This is why none of us can stand by when a state enters the business of legislating identity and insists that a person pretend to be something or someone they are not.”
McCrory and other supporters of the law, however, say almost the exact same thing. The provision that requires all individuals to use facilities that correspond to their birth certificates, they say, is meant to protect young girls, especially, from predatory heterosexual men pretending to be something or someone they are not in order to commit a crime.
Several media organizations have launched investigations into such concerns and have not found any confirmed incidents in the US. There was one in Canada.
“If you attempt to take seriously the phenomenon of gender identity transition, and simply look and see that there are no documented cases of anyone abusing the idea of transgender status in order to be predatory or commit some kind of crime, it’s hard to take these laws seriously,” says Professor Sanders.
The clash comes as a majority of Americans, nearly six in 10, say they oppose laws like those in North Carolina and Mississippi, which require transgender individuals to use facilities that match their gender at birth, according to a CNN/ORC survey released on Monday.
The survey also found that 75 percent of Americans favor laws that guarantee equal protection for transgender people in jobs, housing, and public accommodations.
The civil rights concerns underpinning North Carolina’s “bathroom bill” controversy go beyond conflicting ideas about gender identity, legal observers say.
The North Carolina bill was introduced and passed in a special session in March, after the city of Charlotte passed its own antidiscrimination provisions, including allowing transgender individuals to use the bathroom that matched their gender identity. Introduced and passed in a single day – and prompting Democrats in the Senate to walk out in protest – HB 2 struck down Charlotte’s ordinances and made it illegal for any municipality to pass its own antidiscrimination laws. The state's protections do not cover sexual orientation or gender identity.
“The bathroom provisions of the bill have generated all the publicity, but I find the effective repeal of all [local] antidiscrimination laws in North Carolina much more shocking, much more suggestive of a legislature acting out of raw hostility to all minority groups and even to women,” says Douglas Laycock, professor of law at the University of Virginia in Charlottesville.
But he faults the Justice Department and transgender advocates, too, for not appreciating the significant concerns mixed locker rooms can bring many North Carolina residents.
“From a common sense perspective, if you appear to be female and are wearing women’s clothes, you can’t really use the men’s room,” Professor Laycock says, saying the same of transgender males. “Locker and shower rooms seem to me much more difficult…. Some kind of stalls or cubicles may be essential there. But the principle of the thing is being treated as non-negotiable by the gender identity movement, and apparently, by the administration.”